But this was clearly not the case with "True Grit," an old school Western with a surprising legal focus. First, there's a scene which I will be sure to use in my Criminal Law classes that focuses on the distinction between Malum in se and Malum prohibitum:

LeBoeuf

Azh I understand it, Chaney—or Chelmzhford, azh he called himshelf in Texas—shot the shenator’zh dog. When the shenator remonshtrated Chelmzhford shot him azh well. You could argue that the shooting of the dog wazh merely an inshtansh of malum prohibitum, but the shooting of a shenator izh indubitably an inshtansh of malum in shay.

Rooster

Malla-men what?

Mattie

Malum in se. The distinction is between an act that is wrongin itself, and an act that is wrong only according to our lawsand mores. It is Latin.

Rooster

I am struck that LeBoeuf is shot, trampled, and nearly severs his tongue and not only does not cease to talk but spills the banks of English.

The Mattie in this exchange is a fourteen year-old spitfire played by the terrific Hailee Steinfeld, and, as the exchange reveals, she knows a good deal about the law. Indeed, earlier in the film, there are a couple of snappy scenes between Colonel Stonehill and her in which she uses the threat of litigation (at the hands of Lawyer J. Noble Daggett of Dardanelle, Arkansas) to her advantage.

Later, we learn that the ex-wife of Jeff Bridges' incorrigible U.S. Marshal Reuben "Rooster" Cogburn unsuccessfully tried to get him to become a lawyer:

Rooster

She had taken a notion she wanted me to be a lawyer. Bought a heavy book called Daniels on NegotiableInstruments and set me to reading it. Never could get a grip on it and I was happy enough to set it aside and leave Texas. There ain’t but about six trees between there and Canada, and nothing else grows but has stickers on it. I went to—

This being an Evidence blog, though, my main focus is on earlier scene in the movie in which Cogburn is on trial for the shooting deaths of two Wharton boys. Cogburn's defense (like the defense of Timothy Olyphant's Marshal Raylan GIvens) is that the shootings were justified. At trial, the following exchange occurs:

Cogburn

The woman was out in the yard dead with blowflies on her face and the old man was inside with his breast blowed open by a scatter-gun and his feet burned. He was still alive but just was. He said them two Wharton boys had done it, rode up drunk—

Mr. Goudy

Objection. Hearsay.

Mr. Barlow

Dying declaration, your honor.

Judge

Overruled. Procede, Mr. Cogburn.

Interesting. Federal Rule of Evidence 804(b)(2), which is based upon common law court practice such as the practices likely followed in 19th Century Arkansas (when and where the movie takes place), provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

Now, for the most part, this exception comes into play to prove that the defendant killed the victim such as when Victim says, "Defendant shot me" just before dying. And, occasionally, the exception comes into play to prove that the defendant did not kill the victim such as when Victim says, "Defendant didn't shoot me" or "[Someone else] shot me" just before dying.

What's different about the dying declaration in "True Grit" is that it is the statement of a victim not being used in a prosecution for the victim's death. And technically, I think that the film is probably right that a dying declaration can be used at any prosecution for homicide and not solely at a prosecution for the killing of the victim who made the statement.

That said, I've never seen a dying declaration in such a case, and I don't know that such a declaration would ever be practically admissible in such a case. You see, the Coen brothers (or at least the lawyer and judge in the movie) didn't quite get it right. The old man's statement was not being offered to prove the truth of the matter asserted, i.e., that the two Wharton boys shot him. Instead, it was being offered to prove the effect on the listener, Cogburn, to prove why he had reasonable apprehension of the Wharton boys and why the shooting was justified.

[EDIT 1/14: As Larvell Blanks correctly notes in the comments, the trial at which Cogburn is testifying is NOT a criminal prosecution of him for murdering the Wharton boys. Instead, it is the prosecution of the surviving Wharton boy -- Odus -- for murder. Therefore, the statement that the Wharton boys committed the murder is being admitted to prove the truth of the matter asserted, making it hearsay, but it is admissible as a dying declaration.].

But this being Hollywood--"dying declaration" sounds exciting and is something people have heard of; "not offered for the truth of the matter asserted, but to show state of mind" does not have the same ring with the audience.

Posted by: Howard Wasserman | Dec 30, 2010 5:03:59 AM

Seems that the real problem in the movie, then, is that statement was not hearsay at all. If Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted," then this statement that "them two Wharton boys did it" isn't hearsay. As pointed out above, it's not being offered to prove the truth of the matter asserted - that the Wharton boys did it; it's being offered to show what Cogburn's state of mind was at the time he heard it.

Posted by: Steve | Jan 10, 2011 10:38:52 AM

You haven't got the trial right. Cogburn wasn't on trial for killing the two Wharton boys. (Mr. Barlow: "Your honor, perhaps counsel should be advised that the marshal is not the defendant in this action."). Rather, Cogburn was a witness for the prosecution in the trial of the surviving Wharton boy, Odus -- the one who was "just winged." As such, the testimony in question was in fact a dying declaration, offered to prove the truth of the matter asserted -- that "them two Wharton boys had done it."